August 31, 2007

OK, You Can Mess a Little with Texas

Despite Rick Perry's Instapundit-highlighted bravado in the face of EU criticism, the Texas governor ultimately decided to commute the death sentence of a getaway driver who committed neither robbery nor murder directly.

The Times did flub its SCOTUS reporting: "In 2005, after the United States Supreme Court halted the execution of juveniles, [Gov. Perry] commuted the death sentences of 28 17-year-olds." Even in Texas, we don't have that many teenagers on death row. Rather, as would be implied by the actual ruling that execution for crimes committed as a juvenile was unconstitutional, the 28 inmates had committed their crimes at 17 (people for crimes committed when 16 or younger already were not death penalty eligible in Texas).

UPDATE: Given the apparent consensus of the child development community in Roper that the brains of people under 18 were in flux to the point that it would be wrong to hold them fatally responsible for their actions, I'm surprised to see all the experts called out in support of giving under-18s the vote.

A Couple of Thoughts on Rick Sander's Study

I'm just looking at the background memo on the study that UCLA law professor Rick Sander wants to do on the effect of affirmative action on African Americans' bar passage rates. I think that the California bar ought either to do the analyses themselves or turn over the data under a confidentiality agreement, but I would expect Sander to be quite careful in how he makes comparisons.

Sander's "mismatch hypothesis" roughly states that of two black students with the same LSAT scores and undergraduate grades, the one who uses admissions preferences to go to an elite school is more likely to make lower grades and fail the bar than the one who attends a school that would have admitted him even without affirmative action. It makes sense that students who had the same admissions qualifications would do worse on an elite law school's grading curve than on a less elite school's, but I'm doubtful that this is as disastrous as Sander implies. A B average at a top five school is worth more in employment opportunities than a B+ average at a mid-level school; for one thing, the top schools impose grade-blind first round interviewing, so a candidate has the opportunity to charm and impress an interviewer before she sees his grades, whereas lower-ranked schools only allow their best students to see these interviewers. Therefore more worrisome than the stuff about grades would be the claims about black students at elite schools failing the bar exam at a higher proportion to their white classmates than black students at non-elite schools who had the same entering qualifications do in proportion to their white classmates.

1) "In one analysis, Sander found that blacks who passed up an elite school offer to attend a less elite school were half as likely to later fail the bar." I'd be curious as to how that analysis came out for the whites who made a similar choice, because elite law schools aren't necessarily better than less elite schools at preparing students for the bar exam. For example, the University of Southern California's law school, though ranked 16 by US News, has a California bar passage rate of 81.3%, less than 2% higher than the U of San Diego law school, which has a rate of 79.5% despite a ranking of 85. UC Davis, ranked 34, has a lower pass rate than USF, ranked 100. St. John's, ranked 70, has a NY rate of 88.8%; Columbia, ranked 5, is less than 2% higher at 90.6%.

And which bars are students choosing to take based on the schools they attend? Heck, if I have the choice between Stanford and Marquette, I can go to Stanford and take the notoriously difficult CA bar, or not have to take the bar at all and still be able to practice in Wisconsin (you didn't really think those 100% passage rates from UW-Madison and Marquette could be calculated exactly like other schools', did you?). Comparing different state bar exams to one another would make for some very sloppy conclusions, yet law students frequently look nationwide in making their choices about schools, bars and employment. Maybe UT's having a lower rate than Baylor can be explained by the greater likelihood of UT students to work outside Texas, thus drawing some of the better students out of the TX bar exam pool.

2) The concern that information on bar-takers' race comes from the bar-takers themselves, and may thus be
unreliable, is described as "probably the silliest of the four arguments. Essentially all racial data in the United States is self-reported. The bar has been using these self-reports for over twenty years in reporting the results of the bar exam by race." However, some data is required to be reported; for example, the Census is not optional. In contrast, while I haven't signed up for a bar exam, I have signed up for the MPRE, and its form asked if I was willing to have my information made available for research analysis. What percentage of test-takers refuse that request? And to what extent can we estimate the refusals' tracking with race -- especially with Caucasians?

Today / 08.31.07

This Should Make the Iowa Primaries Fun

Judge Robert B. Hanson of the 5C Judicial District of Iowa (Des Moines/ Polk County) decided on Thursday that otherwise-qualified couples cannot be denied marriage licenses based on their being a same-sex couple, thus striking down Iowa's 1998 Defense of Marriage Act as a violation of the state's constitution.

Mitt Romney immediately made his conservative bona fides: "The ruling in Iowa today is another example of an activist court and unelected judges trying to redefine marriage and disregard the will of the people as expressed through Iowa's Defense of Marriage Act. This once again highlights the need for a Federal Marriage Amendment to protect the traditional definition of marriage as between one man and one woman." (Technically, if we're worried about the specific will of the people of Iowa for their own state, instead of trying to impose that will on other states, this decision actually highlights the need to amend their state constitution, not the federal constitution. But Romney's not the Republican who emphasizes federalism, and Thompson made no comment on the decision, though his site did say that he'll be announcing his run officially next week.)

Hanson is relatively young (41), and Iowa state judges are appointed initially, but must stand for retention in a general election thereafter. Hanson is on his first six-year term, and its ending date is comfortably far off -- December 31, 2010.

Varnum v. Brien has lots of interesting things in it. Starting on page 5 of the decision, Hanson considers whether the experts that the state offered to testify to the need for excluding same-sex couples from marriage actually met the standards for being useful experts, and dismissed those whose testimony was based on "moral intuition," a vague interplay of fields none of which the expert held a degree in, and "what people say about religion," rather than empirical research or scientific observation. However, the state's experts who were professionals in medicine, mental health or child development were deemed relevant. Plaintiffs' experts' testimony that was mostly personal anecdotes about how much it sucks to be gay in Iowa also were excluded, but experts who could testify as to the actual costs born by couples because they were not permitted to marry were relevant.

Page 13 has a rather interesting assertion by the state, "Gay couples choose to bring children into the relationship by way of adoption or other means." It's part of an argument that other states have made: heteros have careless casual sex that leads to unintended pregnancies, and therefore should be strongly encouraged to get married and stabilize the relationship into which the children would be born. Although "[t]he Court does not perceive any substantial disagreement between the parties on this proposition" about gay couples' choosing, I am not sure that it fully captures the reality in which we're currently operating.

Due to the former nearly universal bias against homosexual relationships, many gay people tried to convince themselves and others that they were straight, and got married and procreated within a heterosexual relationship. After the heterosexual relationship ended, the children remained and often are being raised within a new homosexual relationship. Even in a post-prejudice era, bisexuals who had children in an opposite-sex relationship but want to raise them with a new same-sex partner would need marriage protections. While one could say that the new relationship was chosen, the kids already existed, and I would be surprised if any empirical research showed better outcomes for single-parented kids than same-sex-couple-parented ones. Therefore the same state concern for heterosexuals' procreation holds for homosexuals' relationships; once the kid is there, what is the state going to do to encourage a stable, well-resourced environment in which she is raised?

That I kind of snickered at point one on page 16 as a "material fact as to which there is no genuine issue" proves that I am no romantic. Though I guess that was already certain when my response to Justice Kennedy's Lawrence opinion, "When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," was Has Kennedy never heard of a one-night stand? Still, "Plaintiffs each have chosen and consented to marry the one unique person who is irreplaceable to them and with whom they have formed a deeply intimate bond and share daily family life, but have been denied this right by the government" could be just as well said by a couple fighting for their right to adult incest.

Whether the plaintiffs had found their one unique irreplaceable person probably wasn't a point that the state sensibly could contest, but point 30 on page 21 may have been: "Iowa Code Sec. 595.2(1) and (20) were passed in response to marriage litigation brought by same-sex couples in Hawaii, in order to ensure that lesbian and gay people are treated unequally to everyone else in Iowa with respect to their relationships." Admittedly, if "Only a marriage between a male and a female is valid" was stuck into the Code with a lengthy legislative record about wanting to screw over lesbian and gay people, there's not much ground on which to fight point 30. But otherwise, had I been the state's attorney, I would have made some effort to specify that the legislation was passed not to treat homosexuals unequally, but only to ensure the traditional status of male-female marriage. Once you concede animus, you have an uphill battle. New York State lucked out in this respect, because its Domestic Relations Law, with its specifications about husband and wife, bride and groom, predates any glimmer in the legislature's mind about homosexuals' wanting to get married.

The litany of marriage benefits offered nothing new.

Point 88 would have gotten even more aggressive challenge from me as the state's attorney. "Some Plaintiffs have used, are using or anticipate using methods commonly used by heterosexual parents to conceive, foster or adopt children. As with heterosexuals engaging in unprotected sexual intercourse, using these methods is known to bring children into a family, but the children may arrive at unplanned times." Inasmuch as this is meant to reference back to the state's assertion on page 13, it is misleading. While heterosexual couples who want to have a baby engage in unprotected sex as the first method of conceiving it (if six months of daily unprotected sex doesn't result in pregnancy, it's time for the fertility clinic), that's quite different from the heterosexuals who are having unprotected sex but don't want to have a baby. The latter group is supposed to be getting shephered into creating a stable child-rearing environment through the social and legal bonds of marriage. That the pregnancy may occur or baby from China arrive at a time that cannot be easily predicted in advance, is quite different from the pregnancy that wasn't wanted in the first place.

This post may be coming across as negative toward Hanson's opinion because I'm commenting only on what I find objectionable or otherwise noteworthy; for all the passages where I'm just nodding my head along in agreement, it isn't manifested here. I approve of all the stuff about homosexuality, children and the history of how marriage has changed -- I just wish the opinion had rested solely on that rather than going into the history of discrimination against gay people. The statement about the correlation between hostility toward people with AIDS and hostility toward homosexuals strikes me as particularly unnecessary. In other words, I like the equal protection argument about the state constitution's forbidding sex discrimination and the rational basis argument*; I don't like the due process argument.

Due process is troublesome because there is no precedent, neither federally nor in Iowa, that there is a fundamental right to marriage with someone of the same sex. While a county judge has the same obligation to uphold the state constitution as any other judge, if there is a complete absence of recognition to a right of same-sex marriage, then claiming it must be permitted on due process grounds is shaky. Due process rests, to some extent, on showing that the right in question is a fundamental one. If the right to a same-sex marriage is fundamental, it nonetheless has been denied historically by every state in the Union as well as by the UK. In contrast, several states (Connecticut, New Hampshire, New York, New Jersey, Vermont, Wisconsin, Minnesota, Alaska and Hawaii) and DC never made miscegenation illegal, and it was not illegal in the UK at the time of the Founding.

In contrast, equal protection does not require that two groups have been treated equally historically; it requires that people be treated equally today. If Betty cannot marry Sue, but Joe can, and the only reason he can marry Sue where Betty cannot is that he is a man and Betty is a woman, then Betty has been discriminated against on the basis of sex, which violates her constitutional right to the equal protection of the laws. This is similar to how a black man could have married the black woman Mildred Loving, but the white man who wanted to marry her could not. To discriminate on the basis of race, the state needs a compelling interest. To discriminate on the basis of sex, the state needs a "exceedingly persuasive justification." While the state's justifications for excluding same-sex relationships from marriage almonst surely will be found on appeal to satisfy the rational basis test, I think whether a judge will find them "exceedingly persuasive" is less certain.

The rational basis section of the analysis includes the quote from Scalia's Lawrence dissent that was the only thing I liked in Chief Judge Kaye's otherwise wet dissent in Hernandez: "'preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples."

* So help me God, any commenter to this post who cites Williamson v. Lee Optical for the rational basis test is getting her comment deleted. "The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought." Williamson does not stand for the proposition that the rational basis test for state laws regulatory of non-commercial rights and liberties is the same as the one the Court applied for a law about who can fit new lenses into eyeglass frames.

August 30, 2007

Place Me with These Snobby White Girls

Remember when bans on pants that exposed one's underwear were assumed to be directed at least partly at Britney Spears and other women who wore low-slung pants? Apparently the recent fashion trend away from ultra low-rise has left young African American males alone as the targets of such ordinances, at least according to the New York Times.

My own constitutional analysis hasn't changed since these laws were being suggested four years ago; if a locale wants to require that people not intentionally expose their underwear in public, that's within bounds of the police power. The shift in the assumptions, however, is interesting to observe. Once upon a time, Nelly and P. Diddy decried, "Look here momma you're dead wrong / For having them pants on / Capris cut low so when you shake it I see your thong." Now law mandating that private parts stay private and unmentionables are kept invisible has the Georgia ACLU executive director complaining, "I don’t see any way that something constitutional could be crafted when the intention is to single out and label one style of dress that originated with the black youth culture, as an unacceptable form of expression."

Crafting a law that doesn't single out the hiphop style of baggy pants doesn't seem difficult. The law should be oriented toward what is exposed, not who or how. For example, a law that singled out men would be automatically questionable on equal protection grounds, but one that simply required everyone of all races, ages and genders to keep their underpants covered in public would avoid that problem. The real trouble is enforcement. Because African American men already are born suspect, laws that would empower police to arrest many of them for a simple violation of dress code are likely to be abused and selectively enforced in accordance with biases of age, race and sex. However, I don't know how you'd pre-emptively strike a law based on how it would be applied, without giving it the chance to be applied, and I just don't see a facial unconstitutionality in these bans. However, explicitly raising the as-applied concern prior to enactment may lead to a more careful enforcement.

August 29, 2007

Facebook Political Filosofy

A friend "is wondering whether Larry Craig has lost political support because he was arrested, or because he may be gay? Or is it all the same in American politics?"

I wrote on her Wall: Larry Craig deserves to lose political support not for a crime but for being an idiot. What kind of U.S. Senator doesn't know better than to plead guilty without advice of counsel? You wouldn't catch the Kennedys doing that. Is he the one person in America who has avoided Law & Order reruns?

Unfortunately, the links at Volokh don't seem to play well on Facebook, as the link preview showed a later post from Dale Carpenter on the same topic.

Will Guns Prevent Iraqi Genocide?

Advocates for retaining a large number of American soldiers in Iraq frequently cite the probability of a genocide against the Sunni minority as a reason for liberals to join this position: if liberals really care about preventing genocide, the argument goes, they should want to prevent it in Iraq.

(Personally I think large-scale violence in Iraq will look more like 1947 India -- 12 million moved, at least 1/2 million killed -- than like 1994 Rwanda, as a large, once-dominant minority moves to its enclaves and members of the majority resident in those enclaves move out, though it may be to Iraq's temporary advantage that those enclaves will be determined by the actual strength of the groups rather than by Brits with bad maps. My dad, fresh from a visit to Turkey, recently praised the 1923 population exchange between Greece and Turkey, pointing out that as large shifts of antagonistic groups go, it was admirably peaceful.)

However, given the failure to disarm either Shiites or Sunnis, under Dave Kopel's apparent* theory that being armed can prevent genocide and other crimes such as lynching, shouldn't Iraq be one of the places least likely to experience genocide? Or does the widespread possession of weapons just mean that the Sunnis will take a lot of Shiites down with them? (Well, whatever Shiites are left after rival militias have finished with each other.)

* Kopel has said that "although disarmament does not cause genocide -- disarmament is the sine qua non of genocide." In other words, there can be disarmament without genocide, but there can be no genocide without disarmament. Presumably there can be internment without disarmament, however, as to my knowledge the Japanese-Americans rounded up after Pearl Harbor were legally able to possess guns.

Coincidence

Just as I was logging into De Novo to note a Slate piece about online reputations, which noted the case of someone accused of a sexual offense against a minor and later cleared, a New Jersey man whose reputation was kicked around in the comments to a post showed up in those comments to defend himself. The post to which these comments were made did not mention Michael McClure -- indeed, I'd never heard of him -- but instead was a critique of Georgia judge Craig L. Schwall. The first comment made about McClure seemed so self-evidently ridiculous that I didn't delete it. The next comment about McClure seemed to be a cut-and-paste of an actual news article, so it remained as well. Now McClure says the article was doctored, and points out that the charges against him were dropped and that multiple families with parents in law enforcement have chosen him to teach their children. As he hasn't asked that the prior erroneous comments be deleted, they won't be; anyone who comes to De Novo while searching for a Michael McClure involved in dance in New Jersey will see his self-defense quickly and easily.

But this brings me back to the Slate column, in which Jack Shafer advises those who are troubled by negative, outdated information being the top Google hit for their name that they should simply remake their online image by purchasing the domains for their names and getting links to pages that present positive, accurate information. "I'm all for getting the Times to correct meaningful errors of fact in a decent interval, but if you want to secure a better reputation than the one that Google currently spits out, get busy and build it yourself." This is reminiscent of the Reputation Defender strategy of pushing the negative webpage down in the search hits by getting positive ones higher PageRanks, but the people Shafer mentions mostly have an advantage in that the Times ran a correction or an updated story. They don't even need to spend money on their own page, they just need to get people to link heavily to the better Times article.

They also probably won't face the problems that beleaguered female law students who were harassed at AutoAdmit.com. The New York Times won't take a punitive attitude toward them; hell, it's the Times's own public editor who is bewailing what has befallen them. There will be no campaign to keep the negative information about them high on the Google hit list. While I lack Shafer's dismissive attitude toward those shy of publicity -- an attitude born, I suspect, of having deliberately pushed himself into the public eye by becoming a journalist -- I would tell Allen Kraus and his unnamed brethren to count themselves lucky to be dealing with merely the biased, leftwing Big Media, and not with anonymous forum posters.

UPDATE: McClure has requested that the comments be deleted, and this post also has been edited accordingly. Any future comments relating to him will be deleted as well.

August 28, 2007

Old: Intellectually Dishonest; New: Dangerously Fictional

Having recently heard criticism of my post about Thomas's concurrence in the Bong Hits 4 Jesus case, I re-read the post myself and have come up with an alternative phrase that might be more acceptable than "intellectually dishonest." That was how I described the concurrence for ignoring that it wasn't just state-run schools that could trample student's federally-protected speech rights -- it was any state institution, anyone's rights, and any aspect of the First Amendment. It's not a phrase I use much at De Novo; it was on my mind when I wrote the Bong post because of Melinda Henneberger's saying that women voters have a desire for less intellectual dishonesty from politicians. However, Wikipedia says, "Intellectual dishonesty is the advocacy of a position known to be false," and I wouldn't say the concurrence is doing that so much as it is using rhetoric "to advance an agenda or to reinforce one's deeply held beliefs in the face of overwhelming contrary evidence."

The alternative phrase can be found in the same post, in a quote from Alito's concurrence, which disdains Thomas's claim that public schools merely stand in the place of parents when it comes to controlling and disciplining students. Alito, joined by Kennedy, countered, "When public school authorities regulate student speech, they act as agents of the State; they do not stand in the shoes of the students’ parents. It is a dangerous fiction to pretend that parents simply delegate their authority -- including their authority to determine what their children may say and hear -- to public school authorities."

So how about now, when I think that someone has made an argument that ignores relevant facts, I call it a "dangerously fictional" opinion?

August 27, 2007

Minute Merger Musings

Milbarge hopes that the Federal Trade Commission doesn't follow up its plan to appeal a federal judge's OK of the Whole Foods-Wild Oats merger with a challenge to the XM-Sirius merger. Now that the D.C. Circuit has said no to the FTC's request of a stay pending that appeal, the FTC probably is feeling rather slapped down. However, even if the FTC still is feisty about challenging mergers, there are potential differences between these two.

I'm having trouble getting good information on how profitable Wild Oats has been (the reviews mostly seem to be "less successful than Whole Foods," which is not useful; Bloomberg said last November that "Wild Oats posted a loss in two of the past five years and its sales climbed 26 percent over the period to $1.12 billion, while Whole Foods doubled profit and sales"), so this is just a guess. But I think that there is a failing/flailing firm defense for the XM-Sirius merger that doesn't exist for Whole Foods and Wild Oats. I get the impression that Wild Oats may continue in existence even if the merger doesn't go through, whereas there appears to be concern that either XM or Sirius or both wouldn't survive if the merger isn't permitted. Neither has ever posted a profit, even after XM began predicting that it would.

There's also a branding issue in play with Whole Foods and Wild Oats in the organic food market that doesn't exist, as far as I know, for XM and Sirius in the radio market. Other supermarkets will sell WF's and WO's branded organic food along with other organics. So the question for doing a proper Herfindahl index of the organic foods market, is how much of the total organic market is made up of food branded by Whole Foods or Wild Oats, and/or sold in their stores. This may be quite a lot of the organics market, and probably would be even more of it if standards for what can be called "organic" weren't being frantically lowered in order to satisfy demand and appease the big food makers that have developed organic labels. In contrast, satellite radio is a puny threat to terrestrial radio -- particularly compared to the inroads made by MP3s and online music.

August 23, 2007

Split the Deck

A comment from John H. Jackson, a law professor at Georgetown, puzzled me as I was reading about the World Trade Organization's ruling against the U.S. ban on offshore-source online gambling: "Complying with the W.T.O. ruling, Professor Jackson said, would require Congress and the Bush administration either to reverse course and permit Americans to place bets online legally with offshore casinos or, equally unlikely, impose an across-the-board ban on all forms of Internet gambling -- including the online purchase of lottery tickets, participation in Web-based pro sports fantasy leagues and off-track wagering on horse racing."

Frankly I don't see why banning all Internet gambling would be such a hardship to the economy, but if it is, why not just remove the difference between what we allow for U.S.-based online gambling and what we'd allow for the offshore? That is, if the U.S. doesn't permit online casino-style gambling to be done by U.S. companies, it seems fair that it would not permit that particular type of gambling to be done by offshore companies either. There's a credible argument that casino gambling may be seen as particularly dangerous to our citizens because of its habit-forming repetitive nature, which is why bricks-and-mortar casinos are required to keep an eye on their patrons and to post prominent warnings about the dangers of a gambling addiction. If I were arguing the distinction, I would point out that real world casinos can monitor gamblers for signs that they should be cut off from play, whereas online casinos cannot. But if Antigua wants to run lottos, fantasy leagues and horse races, why not let them? Permitting a specific behavior by American companies and not by foreign ones looks like naked protectionism.

The possible legal solutions to the case aside, let it be noted that the American lawyer -- who convinced the islands to bring the trade complaint in the first place -- is a stone cold gangster:

But not complying with the decision presents big problems of its own for Washington. That’s because Mr. Mendel, who is claiming $3.4 billion in damages on behalf of Antigua, has asked the trade organization to grant a rare form of compensation if the American government refuses to accept the ruling: permission for Antiguans to violate intellectual property laws by allowing them to distribute copies of American music, movie and software products, among others. ...

In 2002, Mr. Mendel — who does not gamble and knew little about international trade — was little more than a corporate lawyer in El Paso specializing in securities law. His law partner, though, was friends with Jay Cohen, an operator of an offshore sports betting operation in Antigua who had been sentenced to 21 months in prison for taking bets over the Internet from Americans. Mr. Cohen asked his friend to see if there was anything his firm could do.

“I had not done any trade law whatsoever, but for whatever reason this issue really struck my curiosity,” Mr. Mendel said. Beyond the intellectual challenge, the case also offered the prospect of a set of deep-pocketed clients — the online casinos doing business out of Antigua.

So Mr. Mendel, 51, who recently moved his family and his practice to Ireland to be closer to Geneva, jumped in enthusiastically.

Washington responded to Antigua’s complaint by claiming it was within its rights to seek to block online gambling on moral grounds, just as any Muslim country would be within its rights under international trade agreements to ban the import of alcoholic beverages. The W.T.O. rejected this argument as inconsistent with American policy.

The general rule in the world of international trade agreements is that a country must treat foreign goods and services in the same manner as it treats domestic ones. The United States, the trade body found, permits online wagering through sites like Youbet.com, a publicly traded company that allows visitors to place bets at horse racing tracks around the globe.

And, of course, some form of casino gambling is legal in more than 30 states, and even local governments advertise gambling services when states encourage people to buy a lottery ticket.

“This isn’t a case of forcing gambling on a population that has decided they don’t like it,” Mr. Mendel said. “This is the world’s biggest consumer and exporter of gambling services trying to prohibit a small country from developing its economy by offering these same services. And we find that deeply hypocritical.”

Indeed, despite all the obstacles Washington has imposed, including making it a crime for banks and credit card companies to handle Internet gambling payments, millions of Americans still manage to play poker and place sports bets online. Many more would certainly do so if the obstacles were removed.

August 22, 2007

Beyond lawyer jokes: Elite Law Professor Jokes!

I'm back! After a bit of a summer hiatus from thinking about the law too much, I am ready to get back to spending some time thinking deep thoughts (ha!) on the law and the whole crazy circus we have built up around it.

I'm now back at USF as a newly minted 2L eager to take classes in my particular areas of interest, and of course to learn about this new world of being a (drumroll) law review junior staff member. I have heard so much about this whole law review business that I am certain that I am currently undergoing some sort of hazing: they are trying to separate the truly dedicated from the merely curious by making us do hours and hours of cite-checking. I am certain that once they separate the wheat from the chaff, they will part the velvet curtains and usher us into the back room where all of the serious partying and handing out of federal clerkships goes on. I know it's going to happen any day now, and in the meantime I just must keep... on.... shepperdizing...

In my quest to learn more about law review, I checked out Daniel Solove's humorous piece titled A Sample Law Review Submission Policy over at Concurring Opinions. I actually was introduced to Concurring Opinions last year through Solove's humorous piece Guide to Grading Exams, which I posted about at the time because, well, it's hilarious. I have since become a dedicated CO feed reader... I admit the site has my favorite lawprof commentary, perhaps because I identify more with the bloggers age and outlook than those at Volokh or Balkinization.

Which is why I was disappointed when Prof. Solove's most recent piece just plain sucked. Even as I started off I was hoping it would be funny. Alas, there really is nothing funny about a Yale-educated law prof at Georgetown mocking student run law reviews for a) making people jump through hoops, b) making arbitrary decisions with great import to people's lives, and c) trading in otherwise meaningless reputation-enhancing association. As far as I can tell as a lowly 2L law review junior staff member still waiting to be shown where the girls and the firm offers are, that's what law school, and law professors, are all about. Isn't it? It's a bit hard to take grief, even if humorously intended, from one of the big fish in our little food chain.

From what I know of Solove through his writing, he is probably a great guy. And, of course, I know he is probably one of the "Good Guys" who wants to reform all of these ridiculous little hierarchies and hoops we have created for ourselves. And I'm sure his piece was intended for other junior law profs, all of whom I understand are struggling to make tenure by kowtowing to 25 year old self-aggrandizing senior editors, and will probably be amused by his piece (as Homer put it, "it's funny because it's true").

But he's gotta get in touch with his readership. How many of CO's thousands of daily hits are from professors/judges/elite lawyers? Probably less than the Concurrers hope! But I can guarantee that a lot of us readers are more likely to be familiar with the agonies and annoyances of trying to get into good schools, please professors, and get good jobs than we are with the rarefied world of the inconveniences of law review submission. And plenty of us (including probably Solove and most other profs) have gone through the long hours of law review work, many of us in the hopes that we might someday be annoyed by over-zealous student editors doing the correct citations for our lazy law-prof asses.

Ultimately, this really is a commentary on the nature of comedy. Solove's grading piece was great because it discussed a common experience, and sorta mocked professors (everyone from 1L's to the CJ have wondered at some point whether a prof was randomly assigning grades). But when he takes aim at folks that are mostly hoping that if they just land the right article or do a great job of editing that one piece that they might someday have a shot at being a GTown law prof, well, it falls a bit flat (although I admit that the same piece would have been mildly amusing if self-deprecatingly offered by a current law review editor). But in Solove's case, he might as well have done a stand-up routine on how difficult it is to find good domestic help these days, or on how the service at fast-food restaurants sucks. Now that's funny!

It gets a C minus on my comedy curve. Of course, that doesn't mean it's that bad... almost everyone gets a C, right?

August 20, 2007

Where's the Brief?

Despitesomeothers'excitementover Carl Malamud's posting scanned microfiche images of 1880s district court cases, I can't get too worked up about it. (Neither can Antitrust Review.) The download's README includes this quote from Peter W. Martin's recent article "Neutral Citation, Court Web Sites, and Access to Authoritative Case Law": "Anyone searching for, analyzing, and then citing authority relevant to a current matter must work with the old as well as the new." Which is true to some extent, but I wonder if Malamud has usefulness backwards by working chronologically forwards. After all, the most recent precedent of a court is the one that a citizen who wishes to know What Is The Law should be reading, not ancient and long-ago-overruled decisions. Starting from microfiche, moreover, only increases the difficulty of making the documents legible, searchable and (best of all) easily cut-and-pasteable. Thus AltLaw, which seems to be working backwards chronologically on federal appellate rulings, has a great advantage in these respects over Malamud's site (and in breadth of coverage, over Project Posner, though the latter has been revised to include Posner concurrences and dissents). Prof. Martin's own Legal Information Institute is a fantastic resource, and one I've used before turning to Westlaw or Lexis, particularly when those have not been freely accessible.

Indeed, while Malamud dwells on "large law firms," I would think the sensible and cost-efficient method of research, at least for a lawyer whose time bills at a lower rate than the databases' time does, would be to search Google (which will hit LII, FindLaw and pdfs from courts' websites, among other resources) in order to find recent cases that are on topic. Then use Lexis's or Westlaw's free document pulling feature to check on whether these cases are still good law. At the end of the process, already somewhat informed of the relevant law, search the paid database efficiently and make sure that nothing has been missed from the area of law and the jurisdiction that matter for the client. Malamud's database isn't useful at any point of this process, and I don't think it's meant to be -- it's more a showpiece to goad the databases into making the underlying government works freely available.

In his letter to Thomson-West, Malamud claims to be confused about how much Westlaw owns of caselaw, particularly that stemming from the days when West was the only reporter: "a large part of the publication stream is tightly interwoven into the very substance of the operations of our courts, with West serving as the either contractual or de facto sole vendor reporting on behalf of the court." Unless Lexis pays for every old case that its subscribers can read or West doesn't bother to enforce its copyrights, presumably a comparison of a Lexis rendition of a case or statute, compared with the West version, would give some idea of what is proprietary and what is not.

August 19, 2007

The Nearly-Perfect Conservative Voodoo Doll

If I were more politically paranoid, I would be convinced that Elvira Arellano, the Mexican illegal immigrant who became a star of the pro-immigration lobby while temporarily evading arrest and deportation by taking refuge in a church, was a Republican plant. While Bobby Rush (D-IL) has put forward a bill to grant her and 33 other illegal immigrants relief from deportation, the bill has remained in committee despite the House's being under Democratic control. The reason why seems fairly obvious -- Democrats have little to gain, and much to lose, from condoning multiple violations of U.S. law.

To my knowledge, Ms. Arellano never has recognized publicly that she did anything wrong by entering the country in 1997, re-entering shortly after being deported or using a fake Social Security number. She may have become pregnant with her son Saul by accident or even due to sexual assault (some women who "refuse" to name the man who got them pregnant either cannot because they were assaulted by a stranger, or do not because they fear repercussions from a known assailant), and I assume that most Republicans' opposition to abortion extends to illegal immigrants. Nonetheless, the timing of her pregnancy, a year after she came back to the U.S., sets off "deliberate anchor baby" alarms on the right. She does not seem to be concerned that her family would face danger in Mexico, given that she sent her seven-year-old son there to plead her case before that nation's Congress. And instead of being embarrassed that one of their citizens would risk imprisonment rather than return to Mexico, those legislators unanimously passed a resolution similar to Rep. Rush's bill.

The only problematic element in this story for immigration opponents is that Ms. Arellano annoyingly failed to become a welfare queen or drug pusher. Instead, she cleaned at O'Hare International Airport and probably still would be working there had it not been for the post-9/11 security sweep. I'm not sure why the Chicago Tribune's editorial board claims that Ms. Arellano would be ineligible for "earned legalization" under Bush's reform proposals -- she has worked and has committed no crimes unrelated to her immigration status.

Nonetheless, Ms. Arellano's activist attitude makes her less sympathetic as a human being. Unlike civil rights icons who went to jail for acts of disobedience that were committed in order to win the rights of entire classes of people, she goes to jail because she wants her son to benefit from both his mother's presence and his American citizenship. Yet if the prosecutor points to Ms. Arellano's past re-entry as reason to pursue a prison term rather than just deportation, she may now be able to see her son only when he can visit her in prison. Even if her case were winning converts for the pro-immigration side -- which I doubt -- she still will have failed in what she claimed was her original goal: being able to stay with her son.

August 16, 2007

Unconscionable Beans and Rice

Despite having gotten a reasonable overview of unconscionability in contracts, I hadn't thought to apply it to a settlement agreement. While aware that contracts in which a starving party promised to pay a million dollars for a meal would probably be invalidated as unconscionable*, I wouldn't have made the same judgment about an agreement in which a starving party foregoes remedies for a wrong committed against it, in exchange for necessities. Yet U.S. District Judge Susan Illston's refusal to dismiss Larry Bowoto, et al. v. Chevron Corp. (N.D. CA) sounded a lot like an invalidation of a settlement agreement based on unconscionability.

In the suit, Nigerian villagers allege that Chevron was behind the government forces that put a violent and fatal end to a protest of the corporation's pollution of the Niger Delta -- a protest that at one point included taking Chevron employees hostage. Government forces killed two protestors in the process of freeing the hostages in May 1998, and shot another four dead and burned down two villages in January 1999 in the course of putting down another protest at an oil rig. Chevron argued that 1) the troops were not under their control; and 2) some of the individual victims as well as representatives of the burnt villages had signed releases of liability in exchange for Nigerian currency, rice, beans and blankets.

The plaintiffs have made literally a dozen claims under state and federal law, and several of these have been dismissed either in phase 1 (plaintiffs' allegations failing to meet the standard for the legal claim) or phase 2 (after discovery, plaintiffs lack sufficient evidence to present to a jury). For example, in a Monday decision (2007 U.S. Dist. LEXIS 59374), Judge Illston dismissed the plaintiff's claim of crimes against humanity. The next day, however, she maintained state claims of secondary liability through aiding and abetting, conspiracy, respondeat superior, as well as of assault and battery, negligence of duty, negligent and intentional infliction of emotional distress and wrongful death claims.

The part of the decision that interests me is Part IX, which discusses Chevron's defense that an individual plaintiff had signed a release of liability. Some of the problems with this defense that Judge Illston identifies seem almost inarguable: the plaintiff does not understand English and no one translated the document for him before he signed it; he was not told that it contained a release; he was told that he had to accept Chevron's money in order to get his dead son's body back; the community leaders who signed on behalf of the two burned villages did not clearly have the authority to bind the villages, much less the individuals residing in them. But at the end, Judge Illston says simply, "Additionally, there is some indication that the Opia and Ikenyan release was signed under duress or undue influence. As the supplies provided along with the money (blankets, pillows, and mattresses) indicate, at the time the document was signed, the communities and their members may have been literally fighting for survival."

This is a more controvertible reason for invalidating the release. Suppose none of the rest had occurred, and the release had been translated and explained to everyone such that there was a meeting of the minds, all individual villagers signed it, no bodies were being held hostage. If the only issue with the release were that it was signed by poor, distressed people who exchanged their signatures for necessities and money, should that alone suffice to void the agreement?

* "Unconscionability has generally been recognized to include an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party." 350 2.2d 445.

August 15, 2007

Today / 08.15.07

Sympathy for the Legalese Devil

Though my blogging may not be the best evidence for it, I prefer legal writing that is lucid and concise rather than otherwise. Indeed, one aspect of litigation that I prefer to much of transactional work is the promotion of clear, forceful writing that seeks to convince the reader, in contrast to the frequent boilerplate and obfuscation of many contracts and disclosures that are just trying to get the deal done and the regulator appeased. To that extent, I am happy to see Adam Freedman's entry to the anti-legalese genre, The Party of the First Part, and its website that calls for readers' own submissions of bad writing to the Hall of Shame. Prizes are given for the worst offenders.

However, I also understand why the author of a publishing contract quoted on that webpage included the following excruciating prose:

From a publishing contract:
For services rendered and to be rendered, it is agreed between the Author and the Author's agent that the Author does hereby irrevocably assign and transfer to said agent and said agent shall retain for the life of the Work a sum equal to fifteen percent (15%) as an agency coupled with an interest of the gross monies accruing to the account of the Author under this Agreement and any subsequent agreements for the life of the Work in all its editions, revisions and adaptations, prior to deductions from or charges against such monies for any reason whatsoever.

The "for services rendered" is to make clear that the commission is in consideration of something done by the agent -- consideration being rather important under contract law. I find Freedman's abbreviation of the above to be somewhat lacking. He translates, "We will deduct a 15% commission for your agent," but if I were the novelist signing the contract and saw only that sentence, I might well assume that the commission extends only to the money I'm making on this deal, and not necessarily for future "editions, revisions and adapatations." After all, my current agent is only doing the work for this deal, and perhaps I'll change agents later on; thus, it's quite important to know that today's agent will be sucking 15% of all income derived from this work forever.

Another oversimplification, from the excerpt posted on the site, caused a wince that I must confess would be peculiar to lawyers. Freedman states, "Dye fought his way to the second-highest court in the land, the United States Court of Appeals, which dismissed his claim." Of course, there is no single "United States Court of Appeals." Does the average layman care? Maybe not, but I am wary of making such a god of brevity that we lose accuracy.

Those rather piddling criticisms aside, Freedman's book bids fair to be worth reading, as is his blog.

August 14, 2007

Church Town

The "company towns" of yore, in which a large employer owned most of the property in an area, have become increasingly rare in the U.S. However, a news story about what might be considered the sequel to Dale v. Boy Scouts introduced me to a new creature: a town in which all of the land is owned by a church. Ocean Grove, NJ, was originally founded by the Ocean Grove Camp Meeting Association in 1869 as a Methodist seashore community, and many of the people with residences build on land leased from the OGCMA are only there in summer.

After the recent instituting of civil unions for same-sex couples in New Jersey, two Ocean Grove residents sought to hold a ceremony in the Boardwalk Pavilion, and when not permitted to do so filed a discrimination complaint with the state. New Jersey still is reviewing the claim, but OGCMA recently filed a pre-emptive lawsuit against the state to prevent enforcement of the law prohibiting discrimination on the basis of sexual orientation -- the same law Dale brought to bear against the BSA. I suspect this suit was a move counseled by OGCMA's attorneys at the Alliance Defense Fund, which is in the business of establishing useful precedents for Christian organizations.

The first cause of action is "violation of the plaintiff's right to freedom of speech." The claims is that "Defendant is violating the Camp Meeting Association’s free speech rights by threatening to force the Association to use its facilities to celebrate same-sex 'civil union' ceremonies. Such use of the Association’s facilities would communicate approval of such 'unions' which is inconsistent with the Association’s views."

Ah, scare-quotes. The argument that any activity that occurs on OGCMA's property will be seen as OCGMA-endorsed is quite weak. No one is likely to think that OCGMA was endorsing inflatable dolls for grown men merely because Davy Jones sang "Rubberene" at their Auditorium last month.* This is a space described in OGCMA's suit as one of the structures and facilities "dedicated to religious worship and other ministry related activities... used throughout the summer for Sunday morning worship services and other functions directly related to the Association’s religious purposes." That it also is used for performances by Jones and other secular musicians goes unmentioned.

The second cause of action, right of expressive assocations, is marginally stronger. Although it reiterates the foolishness about "communicating approval," it makes a better case by stating, "Plaintiff’s right of expressive association will be violated if it is forced to symbolically join with those who desire to use the Camp Meeting Association’s facilities for activities inconsistent with the Holy Bible and doctrine of the United Methodist Church. Such forced association would cause it to express a message contrary to Biblical teaching as interpreted by the Association and the United Methodist Church."

This claim doesn't require a judge or jury to believe that someone observing a civil union occuring on a boardwalk pavilion will think "The United Methodists endorse same-sex unions." The injury arises not from what is supposedly communicated, but from the act of forcing an association that the Church simply does not want; even if no one gets a message of endorsement, the expression itself harms the Church.

The third cause of action, free exercise of religion, is the strongest. If it follows this pattern for its brief, the ADF will violate a cardinal rule of brief-writing, which is to make your best argument first. I understand why they used the order they did because they're depending on the Dale precedent, which did not involve free exercise of religion, but their case is too different from the Boy Scouts'. These couples aren't trying to become part of the church; they just want to use a facility for a couple hours. They're allowed to use it for all the other purposes that other people can use it for -- participating in church activities, as well as simply resting there or skateboarding through. The problem comes with what they want to do in the facility, which is to have a homosexual civil union ceremony there. This is very different from Dale, who wanted to be a scout leader but did not want to do anything different in that role than a heterosexual would do. The Boy Scouts wanted him gone because of what he was, not for anything that he said or did with his Scouts.

According to the complaint, "The Camp Meeting Association has a distinct religious mission consistent with the beliefs of the United Methodist Church which teaches that homosexual conduct is inconsistent with Holy Scripture and that its facilities should not be used to conduct same-sex 'civil union' ceremonies." If the facilities can be used for secular purposes but specifically not for civil unions, then there is a decent argument that forcing the OCGMA to use a facility they own for a purpose forbidden by their denomination's rules violates their freedom of religion.

Incidentally, the current OCGMA president is Scott Rasmussen, founder and CEO of the political polling firm Rasmussen Reports, as well as the co-founder of ESPN.

* I don't know if "Rubberene" was on the setlist for the Ocean Grove performance, but Jones certainly sang about going to Mexico where "I lightly took advantage of a girl who loved me so."

August 13, 2007

Giving It Back to the Goblins

Two bits of Harry Potter geekery:
1) Instead of getting the bigbox discount like a normal American, I went to an independent children's bookstore that carried the British edition at twice the Amazon price, because I couldn't stand to miss any of Hagrid's accent (Scottish dialect gets toned down in the U.S. version).
2) The goblins' attitude toward stuff they make and sell to humans -- that the creation fundamentally belongs to the creator and is on loan to the buyer only for his lifetime -- reminded me of intellectual property and the licensing thereof. You don't own that software or song, you can't give it to someone else; you're merely paying to borrow it from the utlimate owner, the person (or corporation) who made it.

Speaking of licensing, Michael Granof has an idea about how to keep textbook prices down without putting textbook publishers out of business. As I look forward to another semester of $100 textbooks and $50 course packets, the idea of a $15 licensing fee sounds pretty good. However, Granof doesn't address whether students get to keep information for future use after paying that fee, or if they would have to pay it over and over in order to maintain access. If I want to hang onto my fed courts book for future reference, how much will that cost me?

GoogleNews Goes Forum; Newspapers Keep Their Lawyers

Jarret Cohen resurfaced in comments to recommend a USA Today article on GoogleNews's adding a feature in which anyone mentioned in a news piece can e-mail Google and, once verified as the person she claims to be, can have her response to the piece published on the same page as the Google search results for the story. Cohen says,

I guess Google has bought into my general vision of delivering the perspectives of all relevant parties.
I must say, I am very pleased. I can only hope the Internet continues to develop in this overall direction of participation and the enhancement, rather than the suppression, of information.

USA Today provides the following context for Google's decision: "far fewer people visit its news site than the one offered by chief search rival Yahoo. In June, Google's news search site had 9.28 million unique visitors, while Yahoo's news site had 35.2 million, according to the latest data from the research firm comScore Media Metrix."

In other words, GoogleNews must find ways to pull visitors to itself. Upgrading content by providing more than a simple news feed is one way to do so, though Google's reluctance to say how many employees were working on verifying that responses really were from someone mentioned in a given news article seems a sign that many people -- especially the kind who don't already have a site where they could put out a press release countering an erroneous news article -- would wait a long time to be verified. For example, my cousin appears on GoogleNews when you search the archives in an article that incorrectly states the career he planned to pursue, but the article provides no way to contact him, and he does not have a current telephone number nor e-mail address available online. And even if he had been impugned rather than merely misquoted in the local newspaper, how high would his response be on the priority list of a Google employee? But without the verification, the Google feature adds little value when so many news sources already have reader response features of one sort or another on their own sites.

I doubt that the ability to make a response will reduce legal protections against libel, harassment and other tortious speech acts in the near future, nor that news organizations will alter their vetting of what they publish on the ground that anyone who is mentioned and objects can just write to Google about it. After all, people obtain information through multiple routes, so unless my riposte is guaranteed to appear on every page that the original claim did, and to be emailed to all those who saw the statement about me before I did, it's not a sufficient remedy against the harm. The legal responsibility to be duly careful when making claims about others, and the moral responsibility to put one's own reputation behind one's words -- as nearly every source published on GoogleNews does -- is unlikely to be abated by merely adding some code to enable comments.

August 12, 2007

Tarred with the Brush

The only statements I've been able to find from the Obama campaign regarding Judge Southwick's nomination to the 5th Circuit are this and the following from Obama's press secretary: "Senator Obama shares the concerns of his fellow members of the Congressional Black Caucus that Judge Southwick would not adequately defend the rights of workers and enforce civil rights laws, and he opposes his lifetime appointment to the federal appeals court. Given the rocky history of appointments to this important seat on the court, Senator Obama believes the president should nominate a consensus candidate who will fairly interpret and uphold the laws of the nation."

Why does Obama think Southwick should have ruled differently in the two Mississippi cases? Because he thinks Southwick applied the law inappropriately? Or because he does not like the result? Obama is seeking the office from which federal judges are nominated. Southwick has explained himself, in writings and in testimony to the Senate. Now Obama has explaining to do.

Will also evidences a peculiar notion of what's interesting in saying that when the Obama statement referred to Southwick's "7,000 opinions," this figure was "interestingly imprecise." Personally, I never find it that interesting when someone muddles Judge A's vote joining an opinion written by Judge B, with Judge A's writing an opinion herself (even the prolific Posner has not pumped out 7000 opinions), but I guess a Cubs fan must find his thrills where he can.

INCIDENTALLY: Posner quote of the day, from U.S. v. Gammicchia (Aug. 9, 2007) -- "The imprisonment of a very sick person can make the disutility imposed by prison greater than it would be for a healthy person even if, as can be assumed (certainly in the federal prison system), the sick inmate receives adequate medical care... Anxiety about one's sick wife could also increase the disutility of imprisonment." According to a Lexis search, the Seventh appears to be by far the leader among the federal courts of appeals in use of the word "disutility."

Dumbfounding quote of the day, from the S.B. v. L.W. decision that Will defends: "The mother agreed that the lesbian lifestyle was not generally accepted in today's society and stated that she did not believe that her daughter should be raised as a lesbian." Is there a way to raise one's daughter as a lesbian? if so, does it involve giving her G.I. Joes instead of Barbies? Because if that's all it takes, I will overcome my aversion to war toys. Also, judging by Weigand v. Houghton, 730 So. 2d 581 (Miss. 1999), Mississippi prefers to give physical custory of a child to a heterosexual woman married to an abusive felon who threatens to kills that child rather than to a gay father. Or as the dissent put it: "The chancellor and majority believe a minor is best served by living in an explosive environment in which the unemployed stepfather is a convicted felon, drinker, drug-taker, adulterer, wife-beater, and child-threatener, and in which the mother has been transitory, works two jobs, and has limited time with the child. The chancellor makes such a decision despite the fact that Paul's father has a good job, a stable home, and does all within his power to care for his son."

Pay-to-Play on Prisons

While this would do little to assuage the problems created by housing prisoners in-state but hundreds of miles from their families, I'd like to see a Balanced Penal Bill in which any addition to the list of crimes punishable by prison time, or any increase in the minimum amount of time a prisoner would have to serve for a crime, must be balanced by an increase in the budget for prisons. I realize this goes against a fundamental dubious assumption behind increasing criminal penalties -- the greater the punishment, the less likely someone is to commit the crime -- but it might give tuff-on-crime yet anti-tax-and-spend politicians a moment of critical thought about whether one can have everything one wants.

Cute, But No

David Schraub composes a charming alternative history for the Ninth Amendment, in which the Framers, inspired by Abigail Adams, vigorously debated whether the Constitution protected a right to control reproduction (in the case of slaveholders, not only their own babymaking but their slaves'). He puts this fiction in service of the claim that those who perceive a backlash against Roe overestimate citizens' understanding of legal theory; people aren't angry about how abortion becomes legal or illegal, the argument goes, they're results-oriented and only care whether it is legal or illegal.

This argument misunderstands the type of legal theory that is being assumed of the general populace by those who perceive a Roe backlash -- a group that includes Justice Ginsburg, who believes in a sex-equality-based constitutional right to abortion, but says that Roe's overreach retarded what otherwise was a growing state-by-state movement to legalize abortion in an increasing number of situations. I agree that the average person is not closely tied to originalism, textualism, pragmatism, living constitutionalism, etc. These are mostly academic notions superimposed on our politics.

What regular Americans do care about, however, is local control, or what the ivory tower types call federalism. This has been a feature of our politics since there was an America, and while it has diminished over time, normal people in Texas and New York still get pissed off that exterior majorities, or the Supreme Court, can force them to do something that the citizenry of that particular area doesn't want to do. One of the absurd aspects of the Schiavo drama was the intervention of the United States Congress in the proceedings of a Florida trial court that had found Mr. Schiavo's claims about his wife's wishes to be more plausible than her parents'. Even people who would have ruled in favor of the parents had they been the decision-maker looked askance upon Congress stopping its regular business in order to deal with this matter.

This instinctive desire for local control fueled backlash against Brown, but to a much greater extent against Roe, in a way that the -isms never could. Before Roe, people in Texas mostly were content to let heathen New Yorkers kill babies; it wasn't on the Texans' consciences. And it wasn't on the New Yorkers' consciences when Texas women desperate for abortions were killed or injured by unsafe abortifacients. I seriously doubt that the average Texan in 1970 could explain the difference between originalism and textualism; he just knew that what happened in his state was Texans' business and nobody else's. Roe nationalized the issue, putting people with strong objections to abortion in proximity to clinics that openly offered the procedure. Inasmuch as there's a legal theory, that's the one behind the backlash.

Examining executive privilege

There has been much recent buzz in the legal blogosphere on the tug of war between Congress and the executive. The Senate and House Judiciary committees issued various subpoenae duces tecum, most notably to Harriet Miers, former White House Counsel. The White House has responded by claiming executive privilege and directing Miers, now a private citizen, to disregard the subpoenas. A stellar cast of legal academics are now involved in a Federalist Society debate (where a fuller description of the facts is presented) as to whether, among other things, a claim of executive privilege can be made in this case. While I cannot make any broad claims with such heavy hitters commenting on the issue, I would like to focus on a single point related to the greater scope of executive privilege that Michael Dorf, in his first (and introductory) comment has been suggested by Cheney v. United States District Court.

In a memo discussing steps being taken to cite Miers as being in contempt of Congress, the House Committee explains that among other points, Miers cannot invoke executive privilege in this context as first, the president has not himself invoked privilege through a 'signed or personal statement' and second (third point in the memo) because the president himself was not involved in the firing of the attorneys, and therefore, claims of presidential privilege cannot be made. At various points, the memo cites to the United States v. Nixon, to underline its claim that claims of executive privilege cannot be the presidential panacea to all congressional afflictions (see pp. 44-45 of the memo).

Dorf suggests that such claims are problematic in the light of two points. He correctly notes that Cheney emphasises the fact that in Nixon, the Court balanced claims of executive privilege against criminal rather than civil proceedings, which significantly weakened these claims. It is questionable whether such claims are similarly weakened here, as criminal proceedings in court are not at issue. Second, he claims that denying that privilege can be invoked without the direct involvement of the parties is

a faulty view because we have a doctrine of "executive" privilege rather than "Presidential" privilege. Rooted in separation of powers, it protects the confidentiality of communications within the executive branch. To be sure, in United States v. Nixon, the Supreme Court talked about the "privilege of confidentiality of Presidential communications," but that's because the case itself involved such communications. In Cheney v. United States District Court , although the issue was not directly presented, the Supreme Court appeared to accept that the Vice President could raise a claim of executive privilege.'

However, Cheney does not actually claim that the V.P. could invoke executive privilege. Rather, after comparing the claims made by civil and criminal proceedings against executive privilege, the Court begins its discussion of the weight of privilege in the case at hand by noting that

This is not a routine discovery dispute. The discovery requests are directed to the Vice President and other senior Government officials who served on the NEPDG to give advice and make recommendations to the President. [sec. IV]

In fact, this is very similar to the acknowledgement that the memo makes that executive privilege has been extended by 'one court of appeals' beyond the president himself to 'some White House staff in some circumstances, but only with respect to communication to or from such staff "in the course of preparing advice for the President." [citing in re Sealed Case, D.C. Cir. 1997]. SCOTUS did not actually go beyond this claim in Cheney (if anything it is at pains to stress the proximity of the issue to the president, which suggests the importance of this proximity). It is the House's specific contention that this situation differs in the sense that here there is a claim that the president has ' never received any advice on, and was not himself involved in' the firings. Thus, to extend executive privilege to the subpoena would indeed involve the House to acquiesce to an extension of executive privilege as discussed by the courts until now.

Dorf argues that 'precedent aside… it makes sense to extend executive privilege beyond communications directly with the President.' However, I would question whether extending it to this degree is acceptable: certainly, presidential privilege may withstand civil proceedings, but I doubt whether a vaguer 'executive privilege' that does not involve direct presidential communication should retain such opacity, even in civil cases.

Admittedly, the more interesting debate to be had now, is a) what's gonna happen next (I like Professor Lederman's suggestion of independent counsel being appointed according to Morrison and hope Professor Balkin is wrong in his prediction that it will all peter out – I love a good scandal, and if none exists, it should be created!) b) Professor Dorf's rather interesting suggestion about relegating claims of executive privilege to the statutory arena rather than that of constitutional doctrine and c) why Marty Lederman is the only debater not to have his photo up on the site…

Finally, a quick thanks to PG for having me here. I'm getting ready to move back to the U.S., and New Haven, and am very excited!

Literal or Figurative Fred?

You’ve probably never heard of Rebecca Nurse, but bear with me for a moment. Nurse arrived in Salem, Massachusetts in 1640. There, despite being known as a woman of virtue and piety, she was accused of being a witch. On July 19, 1692, she was hanged.
Now almost 315 years to the day later, one of Nurse’s descendants is suffering through a witch hunt of a more modern variety. I’m talking about Judge Leslie Southwick, whose nomination to the long-standing vacancy on the United States Court of Appeals for the Fifth Circuit is being thwarted by Senate Democrats.

(Maybe Thompson's "You're a noble savage" thing plays well among his voter base, but given that everyone at my mediocre public high school in East Texas had to read The Crucible and thus has heard of Rebecca Nurse even if they don't retain the memory, I don't find it charming.)

Anyway, I didn't bother to read the rest of the piece, because I was stuck on the question of whether Thompson meant that Judge Southwick is a literal or figurative descendant of Nurse. There was a Samuel Southwick who became the ward of Rebecca Nurse and her husband, whom some have identified as the reason for her to have become disfavored by the neighbors, because Southwick was a Quaker. If this genealogy page is accurate, one of Nurse's descendants married one of Southwick's, so maybe Thompson was being literal, because otherwise the reference to Nurse is kind of bizarre.

According to Wikipedia, Nurse does have a connection to a different 2008 Republican candidate: "Mrs. Nurse was a direct ancestor of the former Massachusetts governor and current 2008 presidential candidate Mitt Romney."

August 01, 2007

Don't Break It Down Again

The over half a billion dollars in fines imposed on British Airways by the U.S. and U.K. for its collusion with Virgin in fixing fuel surcharge prices provides an excellent illustration of why the Expedia system of pricing, in which only the final price is shown, with all surcharges, taxes, etc. included, is good not only for the consumer but also for the company.

I understand why an airline might want to break out its base fee from the other fees that it wants to characterize as not being its fault; that way, it can advertise fares at a lower price than the consumer ultimately would have to pay. But this also gives regulators more to scrutinize. While presumably the government-related fees (is there still the industry-wide $2.50-per-flight post-9/11 security surcharge?) can and should be consistent across the industry, without inviting claims of collusion rather than coercion, something like a fuel surcharge is trickier. Some airlines have negotiated better long term fuel contracts than others, and thus the high cost of fuel has differing impacts on each airline. By distinguishing the cost of a surcharge over which they have some control, BA and Virgin made it quite easy for regulators on both sides of the Atlantic to note that those surcharges were in lockstep over an extended period, which is the warning bell to start an investigation into price-fixing. (Good ol' horizontal price fixing, still per se illegal!)

Had BA used Expedia style pricing in which potential customers saw only the final price for fares, regulators merely checking price lists never would have been able to discern a fuel surcharge distinct from that final price at any given time, which would make it impossible to know if Virgin's surcharge was the same. I suppose the regulators could require companies to file long lists of the components that make up final prices (cost of cleaning blanket: 3 cents; cost of fuel surcharge: $10; forcing regulators to read all of this: priceless). Now, just like BA CEO Willie Walsh, I think “Anticompetitive behavior is entirely unacceptable and [I] condemn it unreservedly,” but people, if you're going to do it, don't make it so easy to get caught.